Google has lost its appeal to keep a potentially damaging e-mail away from the jury in the company’s legal fight with Oracle over Java.
Judge William Alsup, who is hearing the case, on Thursday upheld an earlier ruling that the e-mail should remain part of the court record. The e-mail, written by a Google engineer, suggests that Google knew it needed a license to use Oracle’s Java technology in Android.
Oracle accuses Google of infringing its Java patents and copyrights in the Dalvik virtual machine software in Android. Oracle took control of Java when it bought Sun Microsystems last year.
"What we’ve actually been asked to do (by Larry [Page] and Sergey [Brin]) is to investigate what technical alternatives exist to Java for Android and Chrome," says the e-mail, from Google engineer Tim Lindholm. "We’ve been over a bunch of these, and think they all suck. We conclude that we need to negotiate a license for Java under the terms we need."
Google has argued since July that the e-mail is privileged and that it provided it to Oracle inadvertently. The mail was written after Oracle threatened to sue Google for patent infringement, and defendants are not required to disclose communications with their lawyers if they are seeking legal advice about a case.
There are nine versions of the e-mail, including eight drafts that were saved automatically while Lindholm wrote the note. Since he didn’t fill in the ‘to’ field or mark the e-mail as confidential until the final draft, Google mistakenly handed the earlier drafts to Oracle during the discovery process. The final e-mail was sent to Andy Rubin, head of Google’s Android division, and to one of Google’s lawyers.
Wilfull
But the judge noted that the body of the e-mail was addressed only to Rubin. "Simply labeling a document as privileged and confidential or sending it to a lawyer does not automatically confer privilege," Alsup wrote in his order.
The e-mail is important because a jury might see it as evidence that Google knew it needed a license for Java. That could lead to a judgment of willful infringement, which carries a heavier penalty.
At a hearing when the e-mail first surfaced, the judge made clear how damning it could be. "You’re going to be on the losing end of this document with Andy Rubin on the stand," Alsup said to a Google attorney at the time.
However, it’s unclear now when the trial will take place. On Wednesday Alsup postponed the trial, which had been due to begin 31 October, because of a scheduling conflict. He did not set a new date.
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